JH (Re), 2023 ABCJ 151

In the Alberta Court of Justice Citation: JH (Re), 2023 ABCJ 151 Date: 20230712 Docket: CP901001762 Registry: Calgary In the Matter of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 And in the Matter of JH born May 2017 Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

Decision of the Honourable Justice M.J Shaften Introduction [ 1 ] In the matter of JH (the Child), born May 21, 2017. [ 2 ] This is an application by PC (the Mother), pursuant to s 35.1 of the Child Youth and Family Enhancement Act (CYFEA). [ 3 ] A Permanent Guardianship Order (PGO) was granted by the Honourable Judge J.R. Shaw on February 21, 2020, with the consent of both guardians, PC and KH (the Father). [ 4 ] The Court also issued a separate Order for Access under an existing Permanent Guardianship Order on February 21, 2020, providing that access to the Child shall be in the discretion of the Director.

There was a finding that access to the Child shall not interfere with the Child’s adoption and that access to the Child is in the best interests of the Child. [ 5 ] On August 26, 2022, the Mother filed a Notice and Application by a Former Guardian to Terminate a Permanent Guardianship Order. The matter came before the Court for a hearing on May 31, 2023, and both the Mother and the Child were represented by counsel at the hearing. [ 6 ] On November 18, 2022, the Director filed a Notice and Application by a Director for a Private Guardianship Order in favour of the Child’s maternal grandmother, WF.

The grandmother and her younger daughter attended at the hearing but did not take part.

[ 7 ] The Mother’s application should be heard in two parts, as set out by the late Honourable Judge L.T.L. Cook-Stanhope in HMA (Re), 2015 ABPC 29 (HMA) . The first part of the test, as enunciated by the Honourable Judge L.T.L. Cook-Stanhope, is in the nature of a leave application: [140] There should be a two-step process for assessing applications of the kind AM has brought in the present matter.

In the first step, the applicant should obtain approval or leave of the Court, before proceeding with an application to terminate any PGO when it is not supported by the Director. [141] At this stage, before the Court should engage in a full hearing to consider termination, an applicant must satisfy the Court on the basis of reliable evidence or “ostensibly credible and weighty evidence” that their parenting deficiencies or circumstances have changed or improved. [ G.(D.L.). v. Family and Children’s Services (supra) ].

The nature, extent, recency and duration of the change are all factors which will be reviewed at this stage. There must be a significant change. Finally, the evidence must be sufficient to suggest a reasonable likelihood of success in the main application. [142] If there has been such demonstrable change in the former guardian’s circumstances, and if this is sufficient to allow the Court to conclude that the applicant is therefore “capable” of resuming care of the child, the Court may then permit the application to go to the next step.

This is tantamount to granting leave. [ 8 ] If leave is granted, the Court would then hear the application on its merits. Legislation [ 9 ] S 35.1(1) and (2) of the CYFEA states: Application by former guardian 35.1(1) If a child is the subject of a permanent guardianship order, a person who was the child’s guardian immediately before the permanent guardianship order was made may apply to the Court for an order terminating the permanent guardianship order if, at the time the application is made, (

a) the child has not been adopted, (

b) more than one year has elapsed since the period for appealing the permanent guardianship order expired or, if the permanent guardianship order was appealed, since the appeal was disposed of, and (

c) more than 2 years has elapsed since the last application brought by the applicant under this section, if any, was disposed of.

(2) On hearing an application under subsection (1), the Court may (

a) terminate the permanent guardianship order and appoint the applicant as a guardian of the child if the Court is satisfied that (

i) the applicant is capable of assuming and willing to assume the responsibilities of guardianship of the child, and (ii) it is in the best interests of the child that the applicant be appointed a guardian, (

b) make a supervision order in conjunction with an order described in clause (a), or (

c) dismiss the application. History [ 10 ] The Child was apprehended on May 16, 2018, five days before his first birthday. The Mother and the Father consented to a Temporary Guardianship Order (TGO) on September 10, 2018, in front of Judge N. D’Souza. The terms of that TGO included: 1. The mother and father shall attend, and complete assessment, treatment and counselling as directed by the caseworker and follow all recommendations. 2.

The mother and father shall refrain absolutely from the purchase, possession, use or consumption of alcohol or any other intoxicants including street drugs, non-prescription drugs and prescription drugs, unless prescribed for that person by a qualified physician and taken as prescribed and shall ensure that there are no drugs/drug paraphernalia or alcohol in the home at any time. 3. The mother and father shall submit to random drug and alcohol testing as directed by the caseworker. [ 11 ] The TGO was extended on March 8, 2019, again on April 3, 2019, and again on May 1, 2019.

The PGO was granted by the Honourable Judge J.R. Shaw on February 21, 2020, with both parents’ consent. At that time, the Child had been in the care of the Director for approximately one year and 10 months. The statutory total cumulative time for a child under the age of six years is nine months ( CYFEA, s 33(2)(c)). [ 12 ] The Child has been residing with his maternal grandmother, WF, for most of his life, including the period prior to the apprehension in May 2018.

Mother’s Evidence [ 13 ] The Mother gave evidence to the Court that her “parenting deficiencies or circumstances have changed or improved”; that the change was “ significant ” and that there was a reasonable likelihood of success in her application to terminate the PGO. [ 14 ] The child intervention concerns identified by the Director, which ostensibly led to its application for PGO, were set out in a parenting assessment completed in 2019.

On cross-examination, the Mother confirmed that she had reviewed the parenting assessment completed in 2019 and confirmed the concerns were her mental health, the relationship between her and the Father, her emotional reactivity and impulsivity, and her suicide issues in 2018. [ 15 ] The Mother’s evidence was that she and the father ended their relationship on or about March 10, 2021, because of a sexual assault and that he had sex with a friend. She maintains that despite the father contacting her by phone approximately once per year, she has not returned to the relationship and has not seen him.

She has not initiated contact with him. [ 16 ] The Mother gave evidence of her mental health diagnoses including anxiety, depression, post traumatic stress disorder (PTSD) (from five years of sexual assault and sexual assault while she was in the care of the Director), and bipolar 2 with borderline personality traits. She identified that she has developed coping skills to manage her mental health which varies from day to day. She spoke about how she was able to handle losing twins at approximately 16 weeks and her decision to not see the Child while she was grieving.

The Mother gave evidence about the work she has done with Dr. Bradley Dye, Psychologist, Dr. John D. Naylor (Psychiatrist – Riverview Medical Services) and Elements Calgary Mental Health Centre. [ 17 ] Her coping skills include recognizing her triggers and using cold water either on her hands or face. [ 18 ] She has attended the Parenting After Separation (PAS) and the PAS High Conflict courses and has been in contact with Families Matters for additional support. She has also registered for a parenting program to begin in June 2023.

She has financial assistance through Assured Income for the Severely Handicapped (AISH) and is looking for warehouse work.

She has obtained a residence through Calgary Housing. [ 19 ] On cross-examination by Director’s counsel and child’s counsel, the Mother agreed that she had not parented the Child for at least five years and that if her application were granted, she would have the full-time care of a six-year-old with extreme Attention Deficit Hyperactivity Disorder (ADHD) who is very active, gets overstimulated and needs trauma-based parenting due to the domestic violence in his parents’ home. [ 20 ] The Mother testified that the Child can “be a handful” and she has been punched, kicked and he has called her a "b----".

She also testified that she has severe ADHD and that the father does as well. She gave evidence that she has been developing coping strategies to use with the Child and that since he was put on Concerta, he has “been better”. She referenced that she “did not get hit last week” as a sign of such improvement. Analysis [ 21 ] There is evidence of some change in the Mothers’ circumstances as follows: • She and the father are no longer together and ended their relationship in March 2021, although the father is still able to reach her by telephone.

This last contact initiated by the father was in March 2023. • The Mother has been seeing her psychiatrist for check-ins; however, her own evidence is that he does not provide therapy or treatment, but merely checks with her on how she is doing in person or by telephone (Exhibit 4). • She is engaged with Elements Mental Health, but there was no evidence presented as to the treatment, programs or counseling with Elements Mental Health. • She has registered with Families Matter in a program that commences in June 2023 (Exhibit 3). • She completed the PAS and PAS High Conflict on April 27, 2023 (Exhibit 4). [ 22 ] It is commendable that the Mother has been working on her mental health and taking steps to improve herself, including the development of various coping mechanisms.

However, the evidence provided to the Court in support of the Mother’s application falls well short of being reliable as defined by the Honourable Judge Cook-Stanhope in HMA .

While there is evidence that the Mother has made some changes, the change or improvement is not significant enough to terminate the PGO. [ 23 ] While the Court appreciates that it can be difficult to get into programs, the Mother has had approximately four years since the parenting assessment was reviewed with her to engage in Dialectical Behaviour Therapy (DBT) or a similar program that would not only provide her with the tools necessary to parent, but would provide the Court with objective, ostensibly credible and weighty evidence, that she can parent the Child.

Ultimately, the Court must be satisfied that if the application was allowed to go forward, that the evidence would support that the Mother is capable of caring for the Child and that it would be in the best interests of the Child for the PGO to be terminated and the Child returned to the Mother’s care. At this time, there is simply not enough evidence on which to base that finding. [ 24 ] I am cognizant of several factors in this case that inform my decision: 1. The Child was in the care of the grandmother prior to the intervention of Children’s Services and is still in the care of his

grandmother. This has been his status quo for over six years; 2. The Child has recently been diagnosed with ADHD and placed on medication. His ADHD was described as extreme and the evidence of the Mother, both on direct and cross-examination, confirmed that he needs trauma-based parenting; and 3. The Mother is still dealing with her own trauma and her evidence did not demonstrate her capacity for dealing with her son’s trauma.

Decision [ 25 ] The Application to proceed under s 35.1 is dismissed. [ 26 ] As a footnote, given that the Child has had ongoing access with his Mother to date and that there have been issues from time to time between the Mother and the grandmother, the Court would hope to see a Contact Order emerge as part of the grandmother’s application for private guardianship. Heard on the 31 st day of May 2023. Dated at the City of Calgary, Alberta this 12 th day of July 2023. M.J Shaften A Justice of the Alberta Court of Justice Appearances: M. Simon for the Director L. Thiessen for the Child M. Hanson for the Mother